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The Parliamentary Under-Secretary of State for the Home Department (Hilary Benn): Let me take the opportunity, prompted by our discussion on the programme amendment, to thank my hon. Friend the Member for Nottingham, East (Mr. Heppell) for the skilful way in which he has assisted the Committee in conducting its business and for his constant willingness to listen to fair points about the programme motion. That is appreciated by hon. Members from all parties.
When we finished on Thursday, the hon. Member for Woking asked me a list of questions. He kindly prefaced them by saying that he would be happy for me to respond at a later date. I shall be delighted to do so in writing.
I concur completely with the comments of the hon. Member for Somerton and Frome (Mr. Heath) about the way in which community sentences are perceived. That is best summed up by the phrase ''got off with probation''. How often has one heard that phrase fall from people's lips? If one talks to some of the people who are experiencing rigorous community penalties, they will not argue that they have ''got off with'' anything. It is extremely important—not least for the success of many of the Bill's community penalty provisions—that we get away from community penalties being an alternative to the default setting, which is custody. We must lay down clearly, as the Bill does in its principles, where custody is appropriate and where community penalties are appropriate. We must use community penalties effectively.
The hon. Gentleman raises an interesting point about condition creep. Clause 160(6) requires the court, where two or more of those many requirements under subsection (1) are imposed, to consider the compatibility of the two. The other way that it will need to be dealt with is through training. The aim is to enable the courts to flexibly design a sentence that meets the offender's needs. However, I agree with the hon. Gentleman that it would not be sensible if there was to be the condition creep that he describes. That is something of which we shall need to be conscious.
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Mr. Heath: The Minister is responding positively to my point. I am grateful to him for that. He is right that training will play a role. Can he assure the Committee that appropriate guidance will be given on how to apply the palette of requirements in clause 160(1)? That is crucial to the entire operation.
Hilary Benn: I gladly give that assurance, not least because the Sentencing Guidelines Council, in offering advice on the operation of sentences, will be required to do that.
I say to the hon. Member for Southwark, North and Bermondsey (Simon Hughes) that the figures that he reported to the Committee are interesting. He partly answered his question when he acknowledged that there is not an exact parallel because different offenders are being dealt with by the different disposals. A true comparison could be made only if one took a group of offenders who had committed offences of the same seriousness and who had the same background. Custodial sentences could be imposed on one lot and community sentences on the other. We would have a proper control that would enable us to assess the different effect of the different sentences. However, we must continue to answer questions such as those posed by the hon. Gentleman if we are to better understand the impact that different sentences have on different offenders.
Mr. Graham Allen (Nottingham, North): I agree with the hon. Member for Somerton and Frome. I had intended to speak to the clause. However, I shall not do so, as we need to move on quickly. There is a severe credibility problem in the community about the perception of community sentences. I know that the Minister wishes to deal with that.
I have a specific point to make, not least as we approach clause 160, which specifies some of the community sentences. I do not wish to do away with health and safety legislation, but several people have told me that it often inhibits the type of sentence that people wish to impose on an offender because there are onerous health and safety obligations. I should be grateful if the Minister would respond to that point in writing.
Hilary Benn: I will gladly do so.
Question put and agreed to.
Clause 130 ordered to stand part of the Bill.
Clause 131
Restrictions on imposing community sentences
9.30 am
Mr. Malins: I beg to move amendment No. 606, in
The Chairman: With this it will be convenient to discuss the following amendments:
No. 607, in
No. 616, in
clause 140, page 78, line 20, after 'offence', insert 'and the offender'.
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Mr. Malins: My view of the clause is that when a community sentence is passed, the court will have to take into account the seriousness of the offence, but it should in every case specifically take the offender's circumstances into account. In practice, I suppose that one of the most popular community orders is a community punishment order, formerly known as a community service order, by which a court imposes on a defendant a requirement to perform, typically, 140 hours of unpaid work for the benefit of the community.
In reaching its decision the court has regard, of course, to the seriousness of the offence. However, a discussion often follows about whether the order is appropriate to the particular circumstances of the defendant. For example, some defendants are in work and some are not. Some work shifts; others do not. Some have obligations at certain times of the week—such as Friday prayers for a Muslim, or sporting activities on a Sunday for some people. Careful consideration of the circumstances of the offender is essential before a community service order is made.
The Minister may tell me that that consideration is fully catered for in subsection (2)(a), but I want to stress my view that there is no harm in setting out in statute that the offender's circumstances should be taken into account before a community service or similar order is passed, so that the offender will be able to cope with the order and comply with it properly, despite his or her domestic circumstances. I can see no harm in adding the words
''and the circumstances of the offender''
and if the Minister also thinks that there is no harm in adding them, I hope that he will accept the amendment.
Hilary Benn: The hon. Gentleman, who raises an important point, anticipated my response correctly. There is certainly no harm in making the point in the statute, which is why the Bill does precisely that in subsection (2)(a), under which
''the particular requirement or requirements forming part of the community order must be such as, in the opinion of the court, is, or taken together are, the most suitable for the offender''.
That provides the opportunity to deal with precisely those matters that the hon. Gentleman raised. He mentioned religious beliefs, and clause 197, headed ''Requirement to avoid conflict with religious beliefs, etc'', specifically covers that point.
As to subsection (2)(b), it is important that restrictions on liberty imposed by the order should bear a relationship to the seriousness of the offence, which would include the effect on the victim. For example, an exclusion requirement, under which the defendant would have to stay away from the victim, should be governed by an assessment of the nature of the offence and its impact on the victim—but not really by the offender's personal circumstances.
Mr. Malins: The Minister has been very helpful. This short debate has reinforced the point that the circumstances of the offender are a relevant factor. I am grateful to the Minister for his comments and I beg to ask leave to withdraw the amendment.
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Amendment, by leave, withdrawn.
Clause 131 ordered to stand part of the Bill.
Clause 132
Passing of community sentence on offender remanded in custody
Mr. Grieve: I beg to move amendment No. 672, in
clause 132, page 75, line 38, leave out 'may' and insert 'must'.
The clause deals with the passing of a community sentence on an offender who has been remanded in custody. The ordinary rule in a case of custodial sentence imposed after a person has been on remand is that the period on remand must be taken into account in determining the sentence. However, in this case there is a different problem. To what extent should the period spent on remand be taken into account in determining the nature of the community sentence passed? Two contradictory forces are at work: the desire that the community sentence should be effective, and therefore of sufficient duration and severity to deal with the circumstances of the offender, and the concern that if the offender has been on remand for a long time, it will be unfair for him to serve a form of double sentence—several months on remand followed by an onerous community sentence. The clause uses the words that, where there has been a remand in custody,
''the court may have regard to any period for which the offender has been remanded in custody''
in deciding what the community sentence should be. The amendment proposes the substitution of ''must'' for ''may''.
''Must'' imposes a mandatory requirement on the court to consider the period in custody. I hope that that would not fetter the court's discretion too much with regard to the form of community sentence that it imposed. My concern about leaving the word ''may'' is that periods on remand might be disregarded when community sentences follow. If that happens, a sense of unfairness will creep in and people will make comparisons. They will point out that the worst thing that can happen to a defendant is to spend a long time on remand and then get a whacking community sentence on top. There is an issue to be addressed; does the Minister think that the requirement imposed on the court by the word ''must'' would fetter it? I do not think that it would, but it would ensure that the court had to explain properly the relationship between the sentence and the period that the offender might have spent on remand.
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